subpena duces tecum

In the summer of 1971, a federal grand jury sitting in the District of Massachusetts opened an investigation into possible criminal violations arising from the release and publication of a classified Defense Department study known as the Pentagon Papers. Senator Mike Gravel of Alaska, who chaired the Subcommittee on Public Buildings and Grounds of the Senate Committee on Public Works, obtained a copy of the study from one of the defendants in a pending criminal case in the Southern District of New York. On the evening of June 29, 1971, the Senator convened a meeting of his subcommittee, read extensively from the papers, and placed all forty-seven volumes into the public record. Earlier that same day Dr. Leonard S. Rodberg, a research assistant at the Institute for Policy Studies, was added to Senator Gravel's personal staff and assisted the Senator in preparing for and conducting the subcommittee hearing. Several weeks later, press reports indicated that the Senator had arranged for private publication of the papers by Beacon Press and that members of his staff had spoken with the director of the MIT Press about the project. The grand jury issued subpoenas to Dr. Rodberg and to Howard Webber, director of the MIT Press, seeking notes, tape recordings, documents, and testimony concerning the release and publication of the papers. The District Court for the District of Massachusetts denied motions to quash the subpoenas but entered a protective order that limited the categories of questions the grand jury could ask Dr. Rodberg. The United States appealed the protective order to the Court of Appeals for the First Circuit, which modified the order in several respects while affirming the denial of the motions to quash. Senator Gravel moved to intervene in the proceedings, was granted leave to do so, and filed a cross-petition challenging portions of the Court of Appeals decision. The Supreme Court granted certiorari in both United States v. Doe and Gravel v. United States to review the rulings concerning the scope of protection afforded by the Speech or Debate Clause.

In December 1911 a federal indictment containing nine counts was returned against the defendant in the District Court of the United States for the Western District of Missouri. The seventh count charged use of the mails to transport lottery coupons or tickets in violation of section 213 of the Criminal Code. The defendant was arrested without a warrant by a police officer at the Union Station in Kansas City, Missouri, where he was employed by an express company. On the same day other police officers went to the defendant's home at 1834 Penn Street, obtained the key from a neighbor, entered the house, searched the defendant's room, and seized papers and articles that were later turned over to the United States Marshal. Later the same day the Marshal, accompanied by police officers, returned to the house, was admitted by a boarder, searched the defendant's room, and removed letters and envelopes from a chiffonier drawer. Neither the police officers nor the Marshal possessed a search warrant. Before trial the defendant filed a verified petition seeking return of the seized property, asserting that the seizure violated the Fourth and Fifth Amendments. The district court ordered return of property it deemed not pertinent to the charge but retained the remainder, which the government stated would be used in evidence. After the jury was sworn the defendant renewed the petition, which the court again denied. At trial the defendant objected to introduction of the retained papers on Fourth and Fifth Amendment grounds, the objection was overruled, and the papers—including lottery tickets seized by the police and letters seized by the Marshal—were admitted into evidence. The defendant was convicted on the seventh count and sentenced to fine and imprisonment. He then prosecuted a writ of error to the Supreme Court of the United States, assigning as error the refusal to return the property and the admission of the seized papers at trial.

This case arises out of the efforts of the Criminal Investigation Division of the Internal Revenue Service to investigate the tax returns of L. Ron Hubbard, founder of the Church of Scientology, for the calendar years 1979 through 1983. In the course of its investigation, the IRS sought access to 51 documents that had been filed with the Clerk of the Los Angeles County Superior Court in connection with a case entitled Church of Scientology of California v. Armstrong. The Armstrong litigation involved a charge by the Church that one of its former member, Gerald Armstrong, had obtained by unlawful means documentary materials relating to Church activities, including two tapes. Some of the documents sought by the IRS had been filed under seal. On October 24, 1984, IRS Special Agent Steven Petersell served a summons upon the Clerk pursuant to 26 U.S.C. §7603 demanding that he produce the 51 documents. On November 21, IRS agents were permitted to inspect and copy some of the summoned materials, including the tapes. On November 27, the Church and Mary Sue Hubbard, who had intervened in Armstrong, secured a temporary restraining order from the United States District Court for the Central District of California requiring the IRS to file with the District Court all materials acquired on November 21 and all reproductions and notes related thereto. By order dated December 10, the District Court returned to the IRS all materials except the tapes and the IRS' notes reflecting their contents. On January 18, 1985, the IRS filed in the District Court a petition to enforce its summons seeking the tapes and 12 sealed documents the Clerk had refused to produce. The Church and Mary Sue Hubbard intervened to oppose production, claiming the IRS was not seeking the documents in good faith and objecting on grounds of lack of relevance and attorney-client privilege. Respondents asserted the privilege as a bar to disclosure of the tapes. The IRS submitted two declarations by Agent Petersell. The second offered a description of the tapes' contents based on interviews. It appended partial transcripts of the tapes that the IRS had lawfully obtained from a confidential source. After oral argument and an evidentiary hearing, the District Court rejected respondents' claim of bad faith. The court ordered production of 5 of the 12 documents with a restriction that they not be delivered to any other government agency unless criminal tax prosecution is sought or a court order is obtained. The court ruled that the crime-fraud exception did not apply because the quoted excerpts tended to show or admit past fraud but gave no clear indication that future fraud or crime was being planned. Respondents appealed to the Court of Appeals for the Ninth Circuit and the IRS cross-appealed. The panel held that the Government's evidence of crime or fraud must come from sources independent of the attorney-client communications recorded on the tapes. It reviewed only the independent evidence and affirmed the District Court's determination that the IRS had failed to establish the applicability of the crime-fraud exception. The full Court of Appeals vacated the panel opinion for en banc review on the basis of a perceived conflict between precedents. A majority of the limited en banc court determined that the intracircuit conflict was illusory and reinstated the panel opinion in relevant part.

In early 1972, a Bi-County Fraud Unit began an investigation of real estate settlement activities in the Washington, D.C., area. Petitioner Andresen, an attorney who as a sole practitioner specialized in real estate settlements in Montgomery County, Maryland, came under scrutiny in connection with a transaction involving Lot 13T in the Potomac Woods subdivision. The investigation included interviews with the purchaser, the mortgage holder, and other lienholders of Lot 13T, as well as an examination of county land records. It disclosed that Andresen, acting as settlement attorney, had defrauded Standard-Young Associates, the purchaser of Lot 13T, by representing that the property was free of liens when in fact two outstanding liens existed on the property. Investigators also learned that Andresen had defrauded a title insurance company by issuing a policy guaranteeing clear title after the lienholders threatened foreclosure. The investigators applied for warrants to search Andresen's law office and the separate office of Mount Vernon Development Corporation, of which he was incorporator, sole shareholder, resident agent, and director. A judge of the Sixth Judicial Circuit of Montgomery County concluded that there was probable cause and issued the warrants. The searches of the two offices were conducted simultaneously during daylight hours on October 31, 1972. Petitioner was present during the search of his law office and counsel was present during the latter half of the search. Between 2% and 3% of the files in the law office were seized. Less than 5% of the corporation's files were seized. Andresen was charged with the crime of false pretenses based on his misrepresentation to Standard-Young concerning Lot 13T and with fraudulent misappropriation by a fiduciary based on similar false claims made to three home purchasers. Before trial he moved to suppress the seized documents. The trial court held a full suppression hearing, returned some items to petitioner, suppressed others, and ruled that the remaining items could be admitted into evidence. At trial the State proved its case primarily by public land records and by records provided by the complaining purchasers, lienholders, and the title insurance company. It did introduce into evidence, however, several of the seized items. Three documents from the Potomac Woods General file, seized during the search of petitioner's corporation, were admitted. Five items seized from petitioner's law office were also admitted. After a jury trial petitioner was found guilty upon five counts of false pretenses and three counts of fraudulent misappropriation by a fiduciary and was sentenced to eight concurrent two-year prison terms. On appeal to the Court of Special Appeals of Maryland, four of the five false-pretenses counts were reversed because the indictment had failed to allege intent to defraud. Only the count pertaining to Standard-Young's purchase of Lot 13T remained. With respect to this count of false pretenses and the three counts of misappropriation by a fiduciary, the Court of Special Appeals rejected petitioner's Fourth and Fifth Amendment claims. The Supreme Court granted certiorari limited to the Fourth and Fifth Amendment issues.